Commons Reasons and Amendments

Part of Coroners and Justice Bill – in the House of Lords at 4:50 pm on 11 November 2009.

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Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 4:50, 11 November 2009

My Lords, I beg to move that this House do not insist on its Amendments 1, 2 and 216 to which the Commons have disagreed and do agree Amendment 1B in lieu. The House will be aware that on Monday the other place accepted the Government's Motion to disagree with these Lords amendments without a Division. In making the case for Motion A, I can do no better than quote from what the shadow Secretary of State for Justice, Dominic Grieve, said in the other place,

"there is an acknowledgement that to allow intercept evidence would be very difficult at this stage. My party is on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests ... We subscribed to the Chilcot process so that it could be reviewed, and the Chilcot process is not yet complete. Therefore I acknowledge that to ride a coach and horses through that would be unsatisfactory, even though it is an end that I would wish to see, properly arrived at".—[Hansard, Commons, 9/11/09; col. 60.]

My noble friends Lady Ramsay, Lord Robertson, Lord Harris of Haringey and Lord Foulkes made much the same point during our debate on 21 October, as did the right honourable Michael Howard, one of the members of the advisory group of privy counsellors, during the debate two days ago in another place. I hope that, given this wise counsel from a number of eminent sources, the House will not insist on its amendments.

I should add that my right honourable friend the Home Secretary has asked the intercept as evidence team—that is the team that is hoping to implement Chilcot—and the advisory group of privy counsellors, which includes my noble and learned friend Lord Archer of Sandwell, the right honourable Michael Howard MP and the right honourable Alan Beith MP, to look at the issue of coroners' inquests in the light of their emerging findings. I hope that may provide some comfort to the noble Baroness, Lady Miller, and the supporters of her amendments.

Turning to the proposed amendment in lieu, it would further amend paragraph 3 of Schedule 1, which deals with the suspension of a coroner's investigation pending the outcome of an inquiry under the Inquiries Act. On Report, the House agreed amendments, the effect of which is that the duty on a coroner to suspend an investigation pending the outcome of an inquiry would bite only if the inquiry is chaired by a senior judge. Where a coroner's investigation is so suspended, the terms of reference of the inquiry must, as an irreducible minimum, include the matters to be determined by a coroner at an inquest. We find those matters set out in Clause 5. This amendment would add another crucial condition; namely, that the Lord Chief Justice has approved the appointment of the senior judge who is to chair the inquiry.

In another place, the shadow Secretary of State for Justice pressed the Government to provide for more judicial control over this whole process. This amendment does just that. The duty on a coroner to suspend an investigation pending the outcome of an inquiry would come into play only if the inquiry was to be headed by a High Court, or more senior, judge, and the Lord Chief Justice had approved the appointment for the purposes of paragraph 3. Noble Lords who were present at the time will remember that this is just the sort of judicial lock which Lord Kingsland asked the Government to put into effect many months ago. Let me be clear about what this means. The Lord Chief Justice is being asked in practice to approve the displacement of a coroner's investigation by an inquiry. If he does not give his approval, no inquiry will be established.

It may assist the House if I explain how we envisage the process operating. It is worth emphasising that the point at which any question of establishing an inquiry arises is likely to be some way into a coroner's investigation. In cases in which Article 2 is engaged, there is likely to be an investigation by a statutory organisation such as the Independent Police Complaints Commission. The coroner would proceed with planning for the inquest only once he or she was in receipt of the report from the IPCC and any criminal proceedings had been ruled out. At that point, the coroner would review all the evidence with which he or she had been provided, which might include gists of intercept or other sensitive material, and would consider whether an Article 2-compliant inquest with a jury could be held.

To assist this, the coroner would very likely hold a pre-inquest hearing to get the views of all interested persons. If the coroner's conclusion was that the inquest could not go ahead because material that was central to the inquiry could not be disclosed, the organisation from which the material originated would inform the appropriate Secretary of State. That Secretary of State would then inform the Lord Chancellor who, in consultation with the Chief Coroner, would need to be satisfied that every effort had been made for the inquest to take place. Where the Lord Chancellor was satisfied that an Article 2-compliant inquest could not take place, he would write to the Lord Chief Justice to seek his approval of the appointment of a senior judge to chair the inquiry.

The Lord Chancellor's letter could outline the reasons why the coroner's investigation needs to be suspended and why conducting the investigation into the death in question by way of an inquiry set up under the Inquiries Act 2005 is more appropriate. It could also request the approval of the Lord Chief Justice of the appointment of a senior judge to chair that inquiry, and cite any other matters that may be relevant. This could be followed up if necessary by a meeting between the Lord Chancellor, the Secretary of State and the Lord Chief Justice to discuss the matter. We would expect the Lord Chief Justice to take into account what steps had been taken to enable an inquest to proceed and to consider whether other steps could be taken. The Lord Chief Justice may suggest that these are considered before he decides whether to agree to a judge being appointed to chair the inquiry.

Thereafter, the Lord Chief Justice would consider the request and, if he gave approval to the appointment of a senior judge, he could then suggest a particular person to chair the inquiry. I should add that if it is considered appropriate for a judge of the Supreme Court to chair the inquiry, the Lord Chief Justice would consult the president of the Supreme Court before giving his approval. It would then fall to the Secretary of State establishing the inquiry formally to appoint the nominated judge. At the same time, the Lord Chancellor would request the coroner to suspend the investigation if the Lord Chancellor was satisfied that the inquiry's terms of reference established the matters that an inquest would otherwise have established, as per Clause 5.

Finally, the decision to establish the inquiry and the identity of the senior judge who will chair the inquiry will be announced by way of a Written Ministerial Statement by the Secretary of State responsible for establishing the inquiry. It would then be open to any interested party to seek a judicial review of the decision to establish the inquiry.

I am sorry to have gone on for so long, but these matters greatly concerned this House a few weeks ago, and I hope that my explanation has gone some way to showing that we have taken on board the points that were raised. I hope in the light of this explanation that the House will be reassured that these measures provide an improved balance between the respective roles of the Executive and the judiciary in the very rare circumstances in which these complex issues are likely to arise. As I said, they deliver the judicial lock that the late Lord Kingsland sought all those months ago when he spoke at Second Reading. I commend the amendment to the House, and I beg to move.

Amendment to the Motion

Moved by Baroness Miller of Chilthorne Domer

A1: Leave out "Amendment 1B" and insert "Amendments 1C and 1D".

1C: Page 115, line 28, leave out paragraph 3

1D: Page 117, line 14, leave out paragraph 8